How will a delay due to an EB-5 immigrant’s communist status affect I-526 and then I-829 approval?

My parents invested through the EB-5 program and were interviewed for their conditional green card in late January 2014. They are communist bankers who do not hold any political position, but USCIS still needed to perform an additional background check. Will their current communist status complicate their I-526 approval? In addition, about 95% of the other investors in the same project have already received their conditional green card. Because we are still waiting for I-526 approval, and are now last in the queue, will our chances of receiving I-829 approval be reduced?

Answers

Yes, membership in the Communist party will complicate admission as a U.S. permanent resident. Congress passed a law generally making inadmissible any applicant for immigration who is or has been a member of, or affiliated with, the Communist party. The lengthy processing time is probably related to investigating whether your parents are an exception to the general inadmissibility. There are two possible exceptions that might apply. At the interview, did your parents explain that they became Communists as an operation of law when they were under 16 years of age? Did they explain that becoming Communists was to obtain employment, food rations, or other essentials of living and that becoming Communists was necessary for such purposes? Your statement that parents were Communist bankers tells me that they are currently Communists. Therefore the third exception would not apply. The third exception requires that membership terminated at least two years prior to filing the application.

Admitting to be a communist will complicate the process and delay every petition. It is really hard to say how long the background check will take at this time.

Philip H Teplen

Immigration Attorney

Answered onJune 24, 2014

I need more information in order to best answer your question. Clearly, communist membership creates additional layers on investigation by USCIS, but does not translate into a denial. Your matter needs to be reviewed by legal counsel.

The first time there will be a question on your background, such as communist ties, will come out in your written application, I-485, and at the time of the interview with the USCIS or at a consulate interview, whichever is applicable.

John J Downey

Immigration Attorney

Answered onJune 12, 2014

I believe that the communist affiliation will have more to do with the U.S. State Department. They issue the visas to travel to the United States and do background checks at the U.S. consulate. You did not say what country your parents are from.

The communist party membership will not affect the I-526 or I-829 process at all. The issue comes up at the immigrant visa interview or adjustment of status stage. The U.S. consulate in Guangzhou has a special questionnaire to determine immigrant visa eligibility for current/former communist party members. As long as they clear that hurdle and receive their immigrant visas, there should be no other issues. As for being the last in the queue, it is not the best position to be in, but assuming that the project completes its goals in the business plan and can demonstrate the inputs for the indirect job creation methodology, then the I-829 should be approved.

No, it should not complicate the I-526 approval or the I-829. There are waivers for those with communist party affiliation. If you are required to be a member in order to make a living, there is a automatic waiver for that situation. The I-829 will look primarily at job creation and the communist affiliation will not likely be a factor. It will be a consideration at the naturalization stage though, though it should not bar approval of U.S. citizenship.

The I-526 approval is generally valid for one year. Even at the end of the queue, I would hope the project had credible economic methodology to determine enough jobs would be created for all investors (that is, I hope the project did not over-subscribe past the job projections). I would also hope the communist status would not affect the I-526, but when you apply for the conditional green card with the U.S. consulate or through adjustment of status, it will likely be a matter of concern.

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